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.. IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for an order in the nature of Writs of Certiorari under and in terms of Article 140 of the Constitution of the Democratic Socialist Republic of Sri lanka. CA. (Writ) 33512016 Thennakoon Mudiyanselage Janaka Bandara Thennakoon Member of Parliament, Matak Road, Dambulla. PETITIONER -Vs- 1. Hon. Attorney General Attorney General's Department, Colombo 12. 2. Officer-in-Charge Special Investigation Unit, Criminal Investigation Department, Sri lanka Police, Colombo ell. 1 • 3. Director Criminal Investigation Department, Sri Lanka Police, Colombo 01. RESPONDENTS BEFORE A.H.M.D. Nawaz, J. (PICA) Shiran Gooneratne, J. and Arjuna Obeyesekere,J. COUNSEL Camini Marapana, PC with Navin Marapana, PC and Uchitha Wickremasinghe for the Petitioner. Dilan Ratnayake, DSC with Janaka Bandara SSC for the Respondents. Argued on 18.06.2020 Decided on 20.11.2020 A.H.M.D. Nawaz, J. (PICA) The Petitioner has sought mandates in the nature of 'writs of certiorari to quash the decision to indict him in the High Court of Kandy in case No. HC 81/2016. Further orders in the nature of certiorari to quash and set aside proceedings before the Magistrate's Court of Matcde dated 24.11.2015 have also been sought in this application. The main relief sought is the quashal of the indictment filed against the 2 Petitioner in respect of an incident which aUegedly took place on or about the 14th of December 1999. It is indisputable that certiorari lies even against decisions of the Attorney General to indict a person. Article 140 of the Constitution recognizes the class of persons agai nst whom writs lie; namely, a judge of any court offirst instance or tribunal or other illstiflltion or any other person. This Court enjoys the powers to issue orders in the nature of writs of Ce rtiorari, Prohibition, Pr·ocedcndo , Mandamu s and ~uo -warra llto according to law. The words 'according to law' would connote English law, the Constitutional provisions pertaining to judicial revi ew and statutes that regulate the discretion of a statutory functionary but it is in English common law that we look for the legal standards to challenge the lawfulness of decisions made by public bodies and others exercising public functions. Tt is quite clear that the functions of the Attorney General which are statutory partake of the characteristics of public functions and thus the decisions of the Attorney General are always amenable to judicial review. The reviewability of the discretion vested in the Attorney-General came up for interpretation in the case of Victor Ivan v. Sarath N Silva, Attorney General (1998) 1 SrLLR 340. In a fundamental rights application, the Supreme Court declared: "/ tis enough,for the purposes of this case, to say that the Attorney-General's power to file (or not to file) an indictment for criminal defamation is a di scretionary power, which is neither abso lu te nor unfettered. It is similar to other powers ves ted by law in publiC functionaries. Th ey are held in trust for the public, to be exerci sed for the purposes fOl­ which they have been conferrccl, and not otherwise. Where sllch a power or discretion is 3 exercised in violation of a {lmdamental right, it can be reviewed in proceedings under Article 126" The Supreme Court once again grappled with the question of reviewability of Attorney-General's discretion in Sarath de Abrew v. ldaamalgoda and Others SCFR/424/2015 SC minutes of 11/01/2015, wherein His Lordship Priyantha Jayawardena,]. (with their Lordships K. Sripavan, C]. and Upaali Abeyratne,]. agreeing) emphasized the aforesaid legal position in the following tenor: ...... The Attorney General's decision to indict the Petitioner maybe vitiated if a conclusion is arrived at not on an assessment of objective facts or evidence bLlt on subjective satisfaction. " The Petitioner is entitled to resist an)' unlaw{lrl action as a matter of right, and to live under the mle of law, not the 11I.ie of discretion It is a fundamental requirement of the mle of law, viewed as a safeguard against arbitrary power that decision makers act within the powers conferred on them by law alld do not exceed those powers." (at page 10) The exercise of prosecutorial discretion is reviewable not only in applications against infringement of fundamental rights but also in applications for judicial review under Article 140 of the Constitution. No discretionary power is unfettered and whether the discretion is vested in a statutory functionary like the Attorney-General or in a court of law, the remit of that statutory power is subject to the controlling jurisdiction of judicial review under Article 140 of the Constitution. The decisions of a Court of First Instance are also thus amenable to writ jurisdiction of this court prOVided an applicant for judiCial review is able to establish the grounds necessary for the grant of Certiorari, Prohibition, Procedendo 4 Mandamus and ~lIo -warranto - scc the recent pronouncement of this court in Chaminda Bandara Adikari v Kapila Adikari and Others c.A. (Writ) 216/2020 (CA minutes of 25.08.2020). There are dicta from courts which appear to recognize quashal of indictments even in the trial courts. Tn Mudiyanselage Hami v Appuhmny 3 N.LR 101, lawrie, J said on 2nd February, 1898: "In a criminal case it is too late to quash the indictment after it has been once accepted by the Court, and the case for the prosecution is closed." The percipient passage above appears to recognize implicitly the right of a trial judge to quash an indictment at the inception in the trial court. In the case reported in 7 S.C.C 51 the District Judge quashed the indictment. This practice was not discountenanced by the Supreme Court. On the contrary it was recognized. So much for case law on quashing of indictments in the trial courts and superior courts of this country. We have heard arguments both from the learned President's Counsel and the learned Deputy Solicitor General on the facts and circumstances immanent in the case and it is convenient to begin with the advice of the then learned Solicitor General Mr. Priyasath Dep (later His Lordship the Chief Justice of Sri Lanka) dated 04.04.2008, which was proffered from the Attorney-General's Department to the Superintendent of Police, Matale in respect of Magistrate's Court case Mate/Ie , bearing No. B 35627. This case pertained to the incident in question that allegedly took place on 14.12.1999- an event which forms the subject matter of the indictment pending against the Petitioner. 5 The comprehensive advice given by the then Solicitor General in AG's reference bearing No. CM 2/29/2002 speaks nary a word about the Petitioner as a suspect in the case even though the advice was, among other things, i.n relation to non­ summary proceedings to be commenced against Hcrath Mudiyanselage Rupasinghc also known as Thatte Rupe (hereinafter referred to as Thatte Rupe). The advice was also in relation to some other suspects who were involved in the incident. The then Solicitor General had not directed a non-summary inquiry against the Petitioner because no witnesses had ever referred to him in the investigation book extracts as partiet:ps criminis. It was only against Thatte Rupe that a non-summary inquiry for murder of Samantha Thila/i Kumara and attempted murder of Chaminda Sampath Kumara was ordered. After a lapse of 7 years and 5 months from the date of the advice of the then Solicitor General dated 04.04.2008, another advice dated 29.092015 under the hand of a Senior State Counsel was sent to Director CTD, to initiate a non-summary inquiry against the Petitioner in relation to the same incident. This advice of the Senior State Counsel dated 29.09.2015 makes no reference to the advice of the then Solicitor General, dated 04.04.2008. By the time the advice of the Senior State Counsel dated 29.09.2015 was dispatched, the non-summary inquiry against Thatte Ru/JC for the same offences, pursuant to the advice of the then Solicitor General, had already concluded and after committal, he now stood indicted in the High Court of Kandy Case bearing No. 164/14. The indictment dated 11.06.2013 charges the accused Thatte Rupe for causing the death of Samantha Thilak Kwnara on 14.02.1999 punishable under section 296 of the Penal Code and with attempted murder of one Chaminda Sampath Kumara on the same day under Section 300 of the same Code. 1 have perused the 6 indictment against Thane Rupc which is now pending in the High Court of Kandy and I must straightaway point out that there seems to be a mistake in the date of the offence mentioned in the indictment. Most witnesses speak to an incident that took place at Oimbulgamuwa on 14.12.1999. Even the B-reports filed in the case before the non -summary inquiry began refer to 14.12.1999 as the date of the incident. But the indictment refers to the date of the offence as 14.02.1999. Be that it may, the indictment against Thatte Rupc arising from the non -summary proceedings as had been directed by the then Solicitor General (SG), is referred to in the advice sent to the cm by the Senior State Counsel on 29.09.2015. As 1 have said before, this advicc dated 29.09.2015 di.rects the cm to commence non­ summary proceedings against the Petitioner for the same offences.

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